Bombay High Court
Cargill India Private Limited vs Shri Adinath Sahakari Sakhar Karkhana on 12 September, 2013
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
1 27-ao-954-13.sxw
dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 954 OF 2013
Cargill India Private Limited .... Appellant
vs
Shri Adinath Sahakari Sakhar Karkhana
Limited .... Respondent
Mr. Mayur Khandeparkar for the Appellant.
Mr. G.S. Godbole with Mr. Drupad S. Patil for the respondent.
CORAM: ANOOP V. MOHTA, J.
DATE : September 12, 2013
ORAL JUDGMENT :
Rule. Heard forthwith by consent.
2 The Appellant/original Plaintiff has challenged order dated 17 April 2013 passed by the Joint Civil Judge, Senior Division, Barshi, whereby the following order is passed :
"(1) This Court has no jurisdiction to try and entertain the present suit. Therefore, plaint be returned to the plaintiff for proper presentation before the competent Court as discussed above."
2A The Suit for damages for sum of Rs.2 crores is pending ::: Downloaded on - 27/11/2013 20:17:54 ::: 2 27-ao-954-13.sxw before the Civil Judge, Senior Division, Barshi, on a specific pleading that Defendant/Respondent is a Sugar Cooperative society and engaged in the processing and marketing of sugar. The parties entered into a contract on 31 December 2007, whereby the Respondent agreed to supply the Appellant 10,000 Metric Tonnes (MT) of Indian While Crystal Sugar meant solely for the purposes of export. The obligation could not be fulfilled and, therefore, as averred, the Respondent committed a breach of the contract, refusing to supply the balance of the contracted quantity. Therefore, the Suit for damages.
3 There is no dispute that the Court ultimately framed the issues, "Whether this Court has jurisdiction to entertain and try it?"
and "Whether the suit is barred by law?". The learned Judge held that the Court has no jurisdiction to entertain and the same is barred by law.
4 Admittedly, as averred, the Appellant has complied with the provisions of Section 164 of the Maharashtra Cooperative societies Act, 1960 (for short, "the Act") and given notice dated 24 March 2008 accordingly to the concerned Sugar Commissioner and filed the Suit ::: Downloaded on - 27/11/2013 20:17:54 ::: 3 27-ao-954-13.sxw after the expiry of the statutory period of two months.
5 The Respondent in written statement has also raised specific averments as mentioned in para 16(a) which reads as under:
"(a) Defendant is admittedly cooperative society & during the business of marketing of sugar, plaintiff has become member of defendant society since prior to suit agreement dt. 31/12/2007 this suit is barred by the provisions of Maharashtra Cooperative societies Act".
6 The learned Judge, after considering the admission position on record and so also the judgment cited by the parties including Margret Almeida and others vs. The Bombay Catholic Cooperative Housing Society Ltd and others, reported in 2012(2) SCALE 113, and after dealing with Section 91 of the Act, has noted relevant observations which is relevant even for this, reads thus:
"22 Section 91 also stipulates that the disputes which are mandatorily required to referred to the Co- operative Court for an adjudication must also be disputes arising between the parties to the dispute who should belong to one or the other categories specified under clauses (a) to (e) to Sub-section (1), hereinafter referred to as 'enumerated persons', for the sake of convenience. It can be seen from the scheme of Section 91, to confer exclusive jurisdiction on the Co- operative Court, the dispute must satisfy two requirements. It was held so in Marine Times ::: Downloaded on - 27/11/2013 20:17:54 ::: 4 27-ao-954-13.sxw Publications (P) Ltd v. Shriram Transport and Finance Company Ltd., SC/0161/1991 : (1991) 1 SCC 469 at para 11: 11 Before a dispute can be referred to a Cooperative Court under the provisions of Section 91(1) of the said Act it is not only essential that the dispute should be of a kind described in sub-section (1) of Section 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in Clauses (a) to (e) of sub-section (1) of the said section.
Both the subject matter as well as the parties to the dispute must be those specified under the section. In other words if either of the above mentioned two requirements is not satisfied then the dispute cannot be adjudicated by the Cooperative Court. If one of the parties to the dispute is not an enumerated person, the question whether the subject matter of the dispute is one which falls exclusively within the jurisdiction of the Cooperative Court need not be examined. Similarly, if it is found in a given case that the subject matter of dispute is not covered by Section 91, an enquiry into the question whether the parties to the dispute fall under any of the categories enumerated under Section 91 would become irrelevant."
7 The first test as contemplated in Margret Almeida (supra) has been considered by detailed reason in paragraphs 14 and 15.
Paragraph 3 of the agreement is reproduced as under :
(3) Prior to execution of this Agreement the factory has admitted the Exporter as its 'C' Class Member under the bye-laws of the factory and the provisions of ::: Downloaded on - 27/11/2013 20:17:54 ::: 5 27-ao-954-13.sxw the Maharashtra Co-operative societies Act, 1960.
8 There is no dispute that the Appellant submitted Form for becoming a "C" Class Member of the of Defendant Cooperative Sugar Factory. Admittedly, the Appellant therefore, became the defendant-
cooperative sugarcane society.
9The second element which is necessary is whether the dispute in question falls within the concept of "touching the business of the society".
10 There is no dispute that in view of the positive averments so made by the Appellant/plaintiff in the plaint so recorded above & there is no denial to the fact that the Defendant is cooperative society covered under the Act. The averment is also made in the written statement that they are doing business of marketing of sugar. The same is the averment also of the Appellant. The contract in question itself shows that both the parties agreed to do the business of selling and purchasing of the sugar though for the export purpose. The concept "touching the business of society" in my view also in the present facts and circumstances and in view of the non-disputed ::: Downloaded on - 27/11/2013 20:17:54 ::: 6 27-ao-954-13.sxw position on record and specially the averments of the Appellant in the plaint itself and for the fact that the Suit is for recovery of the damages for non-supply of balance sugar, sufficient to cover the case of the Defendant that dispute touches the business of the society. The concept "business" and/or "commercial contract" and/or "purpose of sugar for export", in my view, cannot be dissected. All are interlinked.
The fact of entering into an agreement for purchase of sugar solely for export falls within the ambit of the alleged commercial contract and in no way can be stated to be different and/or distinct than of the doing the business by the society itself of processing and marketing of sugar i.e. sale and purchase of sugar. The transaction in question itself is a commercial transaction and as there is a dispute, it falls within the concept of "touching the business of the society".
11 In my view also both the elements as required, under the law, as referred above as covered against the Appellant and, therefore, the order so passed in no way can be stated to be bad in law.
12 The submission of non-production of bye-laws and such commercial contract for export in no way sufficient to interfere with the reasoned order passed by the learned Judge after considering the ::: Downloaded on - 27/11/2013 20:17:54 ::: 7 27-ao-954-13.sxw facts as well as law placed on the record by the parties.
13 Admittedly, both the parties not led any evidence in support of the issues in question and accordingly purshis was also filed on record. In view of above reasons as well as admitted position on record, including the averments so made by the Appellant/plaintiff and as there is no denial to those averments in any way that itself sufficient and as rightly declared/decided by the Court that this Court has no jurisdiction to try the suit and, therefore, barred by law.
14 Resultantly, the Appeal from Order is dismissed. No costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 27/11/2013 20:17:54 :::